Reflecting on the ‘O’ Word: The many sides of the ‘Occupation’

ARMY CHIEF CHAPLAIN, RABBI SHLOMO GOREN, WHO IS SURROUNDED BY IDF SOLDIERS, BLOWS THE SHOFAR IN FRONT OF THE WESTERN WALL IN JERUSALEM

Occupied. Occupation.

Few words grab Jewish attention — and raise ire — as those describing territories captured by Israel in the 1967 Six Day War and which were annexed by the Jewish state, vacated or settled by its civilians.

The words are now 50 years old but still punch above their weight. Are they merely a legal term or a politicized weapon? That their interpretation splits along the right-left political axis should surprise no one.

Those on a certain side of the debate have no problem describing the post-‘67 lands as occupied, often citing the support of international law and no shortage of United Nations resolutions.

Others may prefer the gentler and less loaded terms of “disputed” or “administered” territories.

But still others reject those appellations and proudly refer to the biblical lands of Judea and Samaria, spurning any historical, religious or cultural claims by Palestinians, Arabs or frankly, anyone but Jews. They may scoff at “the so-called occupation.”

Even the ubiquitous term “West Bank” is freighted with issues.

Whatever you call them, these lands are ground zero in the Middle East debate and raise never-ending questions: how much does Israel cede in some future two-state solution? Does it forcibly remove its settlers, the way it did from the Sinai in 1982? Does it pay reparations to Palestinians whose homes it seized and permit their return? Does it prolong the status quo?

If a recent CJN column by Jean Gerber is any indication, the issue is combustible. “Parse it any way you will,” Gerber flatly stated in these pages in July. “Palestinians in the West Bank are occupied. For 50 years, Israel has been an occupying power.”

That set off the media watchdogs at Honest Reporting, who are more accustomed to attacking the CBC’s Neil Macdonald. Gerber’s claim that the “West Bank” (the quotation marks are theirs) “is ‘occupied’ Palestinian land fundamentally erases from the historical record a continuous 3,000-plus year Jewish presence in what was called, until a few decades ago, ‘Judea and Samaria,’ ” Honest Reporting argued. “Jews have never ceded their rights and importantly, you can’t occupy your own home.”

Gerber’s column also occasioned a strident response from 41 members of the Jewish community. In an open letter to Israeli Consul General Galit Baram on Aug. 10, they asserted, in no uncertain terms, that Israel “is unquestionably an owner and not an occupier. Historically, it is universally recognized that Jews have dwelled in the Land of Israel for well over 3,000 years,” and shame on anyone who thinks Israel is to blame for the stalemate in the Middle East.

Unsurprisingly, that’s not a view shared by left-leaning groups. On its website, Canadian Friends of Peace Now says the “continued occupation and settlement building in the Palestinian territories damage the entire fabric of Israeli society.”

Independent Jewish Voices, an unabashedly pro-Palestinian organization, also refers to the “Occupied Palestinian Territory” (and the role Canada plays in sustaining that alleged status); while the Montreal-based Canadians for Justice and Peace in the Middle East cites the “Israeli Occupation of Palestine.”

Less stridently, JSpaceCanada believes that “the ongoing occupation of the West Bank is untenable, morally problematic, and not in Israel’s best interests.”

The federal government’s official policy went unchanged from 1967 to 2005, when Israel vacated Gaza. Today, Ottawa “recognizes the Palestinian Authority (PA) as the governmental entity in the West Bank and Gaza,” says Global Affairs Canada’s website. It also reiterates the 50-year-old policy that “Canada does not recognize permanent Israeli control over territories occupied in 1967 (the Golan Heights, the West Bank, East Jerusalem and the Gaza Strip).”

ISRAELI PARATROOPERS PUTTING UP THE NATIONAL FLAG ON AN IRON FENCE ABOVE THE WESTERN WALL IN THE OLD CITY OF JERUSALEM

As for punishing Israel for the occupation, both the House of Commons and Ontario’s legislature have condemned the international boycott, divestment and sanctions (BDS) drive. The United Church of Canada, through its “Unsettling Goods” campaign, has continued to advocate for a boycott of goods made in the West Bank in order to end Israel’s “occupation of the Palestinian Territories.” Canadian universities and labour unions continue to flirt with BDS.

Since assuming power, the Trudeau Liberals, continuing the public pro-Israel stance of the previous Conservative government, have opposed a UN resolution that Israeli settlements “in the Occupied Palestinian Territory, including East Jerusalem” are an obstacle to peace.

The Golan Heights are rarely mentioned any longer in the same breath as the West Bank. They were seized in 1967 from Syria and annexed by Israel in 1981. But Syria is no longer pursuing its title to the territory too vigorously now that it is being torn apart by a vicious civil war. And anyone who has stood on that plateau can appreciate how it provides a natural buffer against any military movements from Syria.

East Jerusalem is another story — perhaps the most hotly contested bit of real estate on the globe. Under Jordanian control from 1948 to 1967, the eastern portion of the city was captured by Israel in 1967 and formally annexed in 1980, an act internationally condemned.

Today, the world demands that a future Palestinian state and Israel share the holy city as their capitals, even as successive Israeli governments insist their capital — though unrecognized as such by the international community — is eternal and, notably, indivisible.

Both sides cite laws, protocols and conventions to bolster their positions.

Those who reject any occupation refer to the 1917 Balfour Declaration from Britain, which viewed “with favour” the establishment of a Jewish homeland in Palestine; the San Remo Resolution in 1920, which confirmed the British Mandate and incorporated the Balfour Declaration; and the League of Nations’ 1922 Mandate for Palestine, which was unanimously approved by 51 countries and recognized “the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.”

Those on the other side of the debate, including the government of Canada, reach for Article 49 of the Fourth Geneva Conventions: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Some might argue that the 400,000 Jews on the West Bank were neither transferred nor deported there; neither were the other 400,000 Israeli Jews who voluntarily and willingly reside elsewhereover what is called the Green Line, or the pre-1967 borders.

But in order for the Fourth Geneva Convention to apply at all, there has to be both an occupying and occupied power — and both have to be sovereign states, according to Canadian human rights lawyer David Matas.

“There is no state which claims sovereignty over the West Bank, Gaza and East Jerusalem,” Matas told a Winnipeg synagogue audience in 2015. “So there is no occupation of these territories.”

Jordan, he said, does not assert a claim to east Jerusalem and the West Bank, and Egypt makes no claim to Gaza.

Of the four territories listed by Canada, only the Golan Heights is claimed by another state, Syria, Matas noted. “Legally, this is the only territory which could be characterized as occupied under the Fourth Geneva Convention.”

Both the International Court of Justice and Supreme Court of Israel have thought otherwise. In their rulings on the separation barrier (or security fence), both courts found that the West Bank is occupied.

In its 2005 ruling upholding the constitutionality of the Gaza disengagement, Israel’s high court ruled that Judea, Samaria and Gaza were seized during warfare and are not part of Israel: “The Judea and Samaria areas are held by the State of Israel in belligerent occupation,” the court stated, using a legal term first codified at the beginning of the last century.

But seven years later, an 89-page report on West Bank settlements authored by a three-member committee headed by former Israeli Supreme Court justice Edmund Levy concluded that Israeli control over the West Bank is not an occupation in the legal sense, and that Jewish settlements there do not contravene international law.

So what is Israel’s official policy?

The lands are regarded as “disputed territories,” and the country does not recognize the application of the Fourth Geneva Conventions there, according to Israel’s embassy in Ottawa.

However, Israel does apply the humanitarian provisions of the Conventions in those regions and allows residents there to appeal to the Supreme Court regarding those issues, the embassy added.

As for the United Nations – praised for creating Israel in 1948 and excoriated for bashing it now – its position is no secret. Even the title of Michael Lynk, the Canadian law professor tasked with keeping an eye on human rights in the territories, betrays the UN’s position: “Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967.”

Israel’s 50-year occupation “becomes more pervasive by the day with no end even remotely in sight [and] has been profoundly corrosive of human rights and democratic values,” Lynk wrote in his maiden report to the UN last spring.

Another Canadian lawyer has had much to say about the issue. Toronto-based Jacques Gauthier, a non-Jew, spent 20 years researching his doctoral thesis on the legal status of Jerusalem.

After some 1,300 pages and 3,000 footnotes, Gauthier concluded that Jews are not occupiers of any part of the city, but were given the right to establish themselves there through a slew of international agreements. His thesis resonated in conservative circles.

Gauthier, an expert in international law, has continued to research other contested lands in the region and has come away with the same conclusion: all of historic “Palestine” belongs to the Jews because that is the group to whom the lands were intended by the victorious powers in the aftermath of the First World War.

“I take the position that legal title with respect to all of Palestine was meant for the Jewish people,” Gauthier told The CJN. “Title was intended to be given to the Jewish people.”

As for the word occupation, “it’s not intended to indicate who’s entitled to sovereignty subsequently. Occupied is an interim status until there’s a final determination.”

Gauthier sees “a notion today that has been marketed and sold convincingly by the Palestinians and their Arab friends and others at the UN that occupied territory means occupied Palestinian territory. I can agree it’s occupied because Israel treats that territory as occupied. It’s not annexed.”

“Occupied” merely means that in international law, there’s no final determination as to who the owner will be, Gauthier explained. “Until there’s a peace treaty, there’s no final determination. What has been wrongfully accepted by nations, including Canada, is the concept that it’s occupied Palestinian territory.”

To Gauthier, that is “a distortion of history.”

Another Canadian Christian, MarkVandermaas, toils where the rubber meets the road. An activist and educator who travelled to Israel as a UN peacekeeper in 1978, he founded “Israel Truth Week” in 2012 after Jewish students at Western University in London, Ont. reported feeling intimidated.

Vandermaas claims to have trained more than 480 Jews and Christians in how to “liberate Israel from the fake ‘occupation’ narrative.” His goal is to train 10,000 “Zionist freedom fighters.”

He’s blunt: “There can be no peace without truth, and the truth is that Jews are owners, not occupiers, because they have a land title deed from the original two-state solution, the 1922 Mandate For Palestine, in which the world returned their homeland and told them to rebuild it everywhere west of the Jordan River,” Vandermaas states on his organization’s website.

Why, he wonders, does the world talk about a new two-state solution “when it has failed to honour the original?”

The first question he asks his activists is whether they have read the Mandate for Palestine. “Only about” two per cent have, Vandermaas told The CJN.

“It’s no wonder so many Jews are confused or sympathetic to anti-Israel propaganda, let alone other Canadians,” he said.

McGill University historian and CJN columnist Gil Troy senses “a huge difference” between American and Canadian Jewish perceptions when it comes to what he calls “the ‘O’ word” (occupation).

Many American Jewish liberals spend so much time talking about the occupation, “one worries that it defines their entire approach to the Jewish state,” Troy said. Canadian Jews, he added, are “still far more reticent to use the ‘O’ word to criticize Israel and to see Israel only through a Palestinian-centered distortion prism.”

Nevertheless, whereas 15 years ago the Canadian Jewish left was “extremely quiet and quite marginal, there are now more voices in raising issues about Israel’s policies toward the Palestinians, and using the ‘O’ word.”

To Troy, this proves a broader point he says he’s been making for years: “Canadian Jews don’t need a crystal ball to know their future. All they need to do is look south. Many trends in the American Jewish community today suggest where Canadian Jewry will be tomorrow.”

There’s no national polling data on how Canadians feel about any perceived occupation. Surveys instead show overall support for Israel — and it’s not that strong.

A 2014 Forum Research poll found that only 17 per cent of respondents sided with Israel in the Middle East conflict, while 16 per cent favoured the Palestinians. Fully 64 per cent said they lean toward neither side, and three per cent said they did not know.

So one could say that’s neutral in the best Canadian sense.

Less so was an EKOS poll earlier this year which found that 46 per cent of Canadians had a negative view of Israel, and that two-thirds of respondents thought government sanctions against the country would be “reasonable” in light of last year’s UN resolution condemning the construction of Israeli settlements.

But some academics and community leaders dismissed the EKOS poll as flawed, saying it was sponsored by two Canadian groups with strong pro-Palestinian sympathies and that the questions were misleading.

The Centre for Israel and Jewish Affairs (CIJA) concedes that the territories that ended up under Israeli control following the Six Day War are legally called “the occupied territories,” a phrase drawn from the legal concept of “belligerent occupation” found in law that pertains to armed conflict.

While Israel’s Supreme Court does not hesitate to use the term “occupied,” successive Israeli governments have avoided it, claiming there was no prior legal sovereign in the territories, Fogel noted.

He said Israeli occupation of the territories is “entirely legal” — contrary to the “sloppy” way some people refer to them — pending a peace agreement to which all Israeli governments have been committed.

CIJA, he said, prefers to describe the territories as “disputed,” since their status “can only be determined after direct negotiations between the two parties and the final dispensation of that real estate.”

What neither Israel nor Canada accepts, Fogel said, is the description of those territories as “Occupied Palestinian Territories” — language frequently used by the UN and various groups in the international community.

“That language prejudges the outcome of negotiations, which runs counter to all commitments made to date,” Fogel said.

Also important to note, he said, is that one can be in occupation of disputed territories — disputed since their status remains to be determined through negotiations.

“There is no contradiction,” Fogel said, “between the territories being both occupied and disputed.”

Matas, the human rights lawyer, was blunt in 2015 when he talked about the staunchly pro-Israel government of Stephen Harper, and it was hardly the echo of the Jewish community’s overall enthusiasm for the former prime minister’s support. The government, Matas said, had a reputation of being a friend of Israel, yet its policies on the occupation and other Mideast matters were at odds with that image.

Despite the rhetoric, Ottawa’s stated Mideast policy “is not just not friendly to Israel,” he said. “It is not even neutral.”

The main question that drives the issue I find is what happens to the non-Jewish residents of the disputed territories? If there is no occupation, and they are just simply under the control of the Israeli state, what happens in the future then? If a proper annexation of Judea and samaria happens, what happens to all the people there? Would citizenship be granted to all residents, or would there possibly be a debate about mass deportations of people from their homes? Or would they quite simply deny people citizenship rights while they fully annex the area they live in? If Israel does not want to accept a solution that establishes a sovereign Palestinian state, they must come up with a plan for the non-Israeli populations under their control that is not the Status Quo that is both just and respects basic human rights.